Fenty v City of New York

Fenty v City of New York 2010 NY Slip Op 01839 [71 AD3d 459] March 9, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 28, 2010

Gerard Fenty, Appellant,
v
City of New York et al., Respondents, et al., Defendants. City of New York et al., Third-Party Plaintiffs, v Hilltop Construction and General Contracting, Inc., Third-Party Defendant-Respondent. CDE Air Conditioning, Second Third-Party Plaintiff, v Grand Piping Corp., Second Third-Party Defendant-Respondent.

—[*1] Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), for appellant.

Malapero & Prisco, LLP, New York (Andrew L. Klauber of counsel), for City of New York and Morris Park Contracting Corp., respondents.

O'Connor Redd, LLP, White Plains (Peter Urreta of counsel), for The Liro Group, respondent.

Mauro Goldberg & Lilling LLP, Great Neck (Anthony F. DeStefano of counsel), for Lafata-Corallo Plumbing-Heating, Inc., respondent.

Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Judy C. Selmeci of counsel), for CDE Air Conditioning, respondent.

[*2]Ahmuty, Demers & McManus, Albertson (Brendan T. Fitzpatrick of counsel), for Hilltop Construction and General Contracting, Inc., respondent.

Cascone & Kluepfel, LLP, Garden City (Olympia Rubino of counsel), for Grand Piping Corp., respondent.

Order, Supreme Court, New York County (Marylin G. Diamond, J.), entered July 3, 2008, which, to the extent appealed from as limited by the briefs, granted the motions and cross motions by defendants City, Morris Park Contracting, Liro Group, Lafata-Corallo Plumbing-Heating and CDE Air Conditioning for summary judgment dismissing the complaint against them, and denied plaintiff's cross motion for partial summary judgment against those defendants as to liability on his Labor Law § 240 (1) and § 241 (6) claims, unanimously affirmed, without costs.

On the section 240 (1) claim, plaintiff's injury-producing accident was not attributable to the risk arising from the elevation differentials at his work site that brought about the need for the safety device in the first place, but rather was caused by the separate, unforeseeable hazard of hot steam emanating from a ruptured pipe, leading to plaintiff's decision to jump from the bucket lift (see Cohen v Memorial Sloan-Kettering Cancer Ctr., 11 NY3d 823, 825 [2008]; Nieves v Five Boro A.C. & Refrig. Corp., 93 NY2d 914, 916 [1999]). As to the section 241 (6) claim, at the time of the accident, the work being conducted at the site did not constitute demolition, as required for application of the relied-upon section of the Industrial Code, 12 NYCRR 23-3.2 (a) (2) (see e.g. Baranello v Rudin Mgt. Co., 13 AD3d 245 [2004], lv denied 5 NY3d 706 [2005]). Finally, absent evidence that any of the owners, contractors or subcontractors created or had notice of the defective condition, the Labor Law § 200 and common-law negligence claims as against these defendants were properly dismissed (see e.g. Urban v No. 5 Times Sq. Dev., LLC, 62 AD3d 553 [2009]). Concur—Tom, J.P., Friedman, Sweeny, Nardelli and Abdus-Salaam, JJ. [Prior Case History: 2008 NY Slip Op 31878(U).]